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This video is brought to you by the California Lawyers Association, a non-profit organization of lawyers throughout California. This video is geared for the general public audience, who have questions about how COVID-19 impacts rent payments in California. Please note that this video is intended to provide general information and does not constitute legal advice. The information in this video is based on the rules in place as of May 7, 2020. I'm Ana Liu, I'm an attorney at Steven Adair MacDonald & Partners. I specialize in real estate litigation and I advise clients in a wide variety of matters including commercial and residential landlord-tenant disputes. And I am Stephanie Foster, I'm also an attorney at Steven Adair MacDonald & Parters with Ana. I handle general civil litigation representing plaintiffs and defendants, landlords, and tenants for Realestate matters. In response to the current global crisis, authorities at the federal, state, and local level of government, have enacted emergency measures including eviction moratorium's. Most of these eviction moratorium's allow both commercial and residential tenants additional time to pay rent if they suffer COVID-19 related financial hardships and include penalties for landlords who attempt to sidestep these orders. This webinar will provide insight on handling rent repayment agreements with practical considerations for both landlords and tenants. We will begin with a basic summary and survey of eviction moratorium's, touch on the basics of rent repayment agreements, and talk some practical pointers when drafting those repayment agreements. First, the California state enacted an eviction moratorium, which basically delays evictions. So on March 27 of 2020, Governor Gavin Newsom, issue an executive order, N-37-20. This executive order temporarily delays landlords from evicting tenants for not paying their rent if the tenant can demonstrate that the tenants failure to pay rent is due to an impact of COVID-19. Tenants who notify their landlords in writing before the rent is due, but no later than 7 days after it is due, are able to get an extension of 60 days to respond to any eviction action filed against them. They must state why they are unable to pay the full rent and that reason must be related to COVID-19, tenants also need to provide documentation of their inability to pay. The moratorium will also prohibit a sheriff from evicting a tenant during the existence of the moratorium. Also, the city of Los Angeles has an eviction moratorium in place stating that landlords may not evict residential tenants for nonpayment of rent during LA's local emergency period, as long as the tenant can similarly show they are unable to pay rent due to circumstances related to COVID-19. And Los Angeles tenants have up to 12 months following the expiration of the emergency period to pay any past due rent. Up north in San Francisco, a tenant can provide notice and documentation of a COVID-19 related inability to pay rent will have an additional month to pay the rent, after that the landlord must provide the tenant notice of their failure to pay and discuss a payment plan in good faith with the tenant. The tenant will have up to 6 months from the expiration of the moratorium order to pay the rent owed and the landlord cannot move to evict before then. The SF moratorium expressly states that a landlord cannot evict a tenant who misses an agreed upon rent payment during that 6 month period. The moratorium expires June 29, 2020, or upon order of the mayor, . or upon the termination of the declaration of emergency. This order has already been extended twice in San Francisco, so it's possible that it can be extended again. We will also note that many cities and counties throughout California have enacted their own eviction moratorium's, so it's important that you check your specific requirements before drafting any repayment agreements. If landlords are going to enter into repayment agreements, they really need to be fair, and some people are arguing that it's simply too soon to enter into these types of agreements, so landlords need to be aware of their specific city and county regulations where the property is located. Now we'll get into some practical points for preparing these repayment agreements. First, it's important to understand that the agreement between the landlord and the tenant should state that the tenant will not be evicted on nonpayment as long as the past due amounts are paid according to the schedule in the agreement, and that the tenant does not fall behind on future rent. However, landlords can't force tenants to enter into repayment agreements, nor can landlords make tenants waive any of their rights under state and local laws. This includes the eviction moratorium's we just covered, so be sure that the agreement complies with applicable laws. Landlords should consult with an attorney and so should tenants, if they are presented with an agreement. Also, landlords cannot shorten the time period to repay the rent. For example, because San Francisco give tenants up to 6 months to pay the back rent, landlords cannot contract for anything shorter than that, otherwise that would be a waiver of tenants rights and void for public policy. Next, we'll turn to the basic elements of what actually goes into these types of repayment agreements, and how effective a payment agreement should specify certain terms. There are 5 main points that need to be included, our slide does show 7 points and that includes signatures. So first the agreement should state how the tenant will repay the back rent owed, and who all the parties are to the agreement. The timeline for paying missed rent should also be included, the timeline should be flexible given the current pandemic, and as Stephanie pointed out earlier, cities and counties are changing and extending their moratorium's. So if an agreement is entered into during one period of time, it may later be invalid or voided if the laws of the city or county changed. Agreements should state how much the tenant is paying each month, and what happens when the tenant misses a payment in the plan, how the landlord would enforce the agreement or recover possession of the unit in the event of a breech, and finally who is actually signing this agreement. We'll turn to some considerations for both landlords and tenants when entering into a negotiation for these types of agreements, and first we will touch on what a landlord needs to consider. Landlords must absolutely know their local jurisdiction, know where the property is located, and what the laws are in that city and county. We pointed out many local jurisdictions that require the tenant to provide notice, give their liable documentation, but not all required documentation, so landlords must understand these types of requirements. Also, the definition of financial impact of COVID-19 is often very broad. Other considerations for landlords include repayment agreements, having tenants represent the condition of the property, so if it's in good condition then landlords should absolutely have tenants certify that, and if the property is not in good condition, then the landlord must make necessary repairs to bring the property into complete habitability. Also, be mindful of current stay home orders that may be in effect. If the tenant is in compliance with a payment agreement, landlords cannot file an unlawful detainer action against their tenant for nonpayment of rent, also, an unlawful detainer of action cannot be used to recover past rent that was owed for more than one year ago. So this is one reason why rent payment should be applied to the earliest past due rent amounts. Also, a 3-day notice for nonpayment of rent, should not list any past due charges other than rent, so no late fees, no interest, no fines, fees non-rent amount could be claimed in a separate type of action, like breech of contract. Also various groups and tenant unions are advising tenants not to sign these types of rent payment agreements, and tenants are absolutely not required to sign them. Landlords could consider making these types of agreements more sysynced, and user friendly, removing any unnecessary legales. Organizations like the California Apartment Association and the San Francisco Apartment Association, have forms available for parties to use, and they are pretty straight forward and short forms. Also, we wanted to mention that there's currently an anti price gouging statue in effect right now, due to the declared state of emergency. Anti price gouging in California means that during the declared state of emergency, like right now, penal code section 396, prohibits landlords from increasing the rent by more than 10% during that declared state of emergency. So now for the flip side of what Ana was talking about, was talking about, tenant considerations. If you are a tenant or you represent a tenant who can't pay rent and are considering a payment agreement, first and foremost, understand the notice in documentation requirements for your local city and county, know the timeframe to provide the landlord notice each month you're going to miss a payment, know what documentation you need to prove your hardship, and then know if you even qualify under the local definition of financial hardship or an impact related to COVID-19. Second, understand that there is nothing here that's a rent waiver, and that you are responsible for paying the entire amount of back due rent, and keep that in mind when drafting these payment agreements, understand the time that your local ordinance or city/county ordinance gives tenants to pay back rent and then the actual time frame the tenant can financially pay that rent back. Similar to this is to remember to assign the tenant rent payments each month. The agreement should clearly state what month the rent is missing for, how those payment will be made, and each payment should indicate what month the payment is applying to and what the payment is for. So for example, Sam Mateo's current eviction moratorium up here ends May 31, 2020, that means on June 1 tenants are required to pay the full rent with none of the eviction moratorium protections. Tenants or tenant attorney's should write on the rent checks the rent checks that the rent is for June 2020. Otherwise, the tenant could tender the rent, the landlord could apply it to past due rent that the tenant missed during the moratorium, and serve the tenant with a 3-day notice of June's rent, and the tenant will have no protection, and will have to pay a whole other month of rent within 3 days. Moving on, the tenants need to ensure the agreement does not waive any of their rights, either under the local emergency orders or local ordinances. You want to serve your affirmative defenses like Ana was mentioning of habitability, if there are habitability problems, don't sign anything that states otherwise. Ensure that the agreement does not give the landlord immediate right of possession. Again, using San Francisco as an example, if the tenant has 6 months to pay the rent before the landlord moves to evict, the agreement shouldn't allow the landlord to recover possession before that 6-month period. You also don't want to sign anything as a tenant or a tenants attorney that sidesteps any formal eviction procedures such as filing a complaint, getting a written report, all of those steps. Thank you. Please remember that the information presented is not legal advice and is based on the rules in effect as of May 7, 2020. Thank you for watching this video and for doing your part to navigate through the COVID-19 pandemic.

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Duration: 13 minutes and 14 seconds
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Language: English
License: Dotsub - Standard License
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Views: 1
Posted by: tyanadiaz on May 9, 2020

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